| People v Burns |
| 2013 NY Slip Op 07309 [111 AD3d 1293] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vBradlee E. Burns, Appellant. |
—[*1] Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), renderedAugust 17, 2012. The judgment convicted defendant, upon his plea of guilty, ofattempted assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of attempted assault in the second degree (Penal Law §§ 110.00,120.05 [1]). Although "[d]efendant's challenge to the amount of restitution is notforeclosed by his waiver of the right to appeal because the amount of restitution was notincluded in the terms of the plea agreement" (People v Tessitore, 101 AD3d 1621, 1622 [2012], lvdenied 20 NY3d 1104 [2013] [internal quotation marks omitted]; see People v Miller, 87 AD3d1303, 1304 [2011], lv denied 18 NY3d 926 [2012]), that contention isunpreserved for our review inasmuch as defendant did not object during the restitutionhearing or otherwise alert County Court of his objection (see CPL 470.05 [2];see also People v Horne, 97 NY2d 404, 414 n 3 [2002]). In any event, weconclude that the People established the amount of restitution by a preponderance of theevidence, and there is no basis to disturb the restitution award (see People v Lucieer, 107AD3d 1611, 1613 [2013]; see generally CPL 400.30 [4]; People v Tzitzikalakis, 8NY3d 217, 221 [2007]). Present—Scudder, P.J., Smith, Fahey, Sconiers andValentino, JJ.